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North Dakota has amended its Rule 1.8 (prohibited transactions) to add a provision governing lawyers who act as a fiduciary of an estate, trust or conservatorship . The pertinent addition reads as follows:

(l)Neither a lawyer serving as a fiduciary of an estate, trust,
or conservatorship nor the lawyer's
firm may serve as legal counsel for the fiduciary. This paragraph does not apply to matters in
which
the decedent, trustor, beneficiary, or protected person is a spouse, child, grandchild, parent,
grandparent, or sibling of the lawyer.

The new provision has the following explanatory comment:

[22] Paragraph (l) addresses situations in which a lawyer may be asked to serve as both
a fiduciary
for an estate, trust, or conservatorship and as legal counsel for the requesting party. Situations in
which a lawyer serves in both capacities represent a conflict of interest and present, whether by
design or default, opportunities for overreaching, misappropriation, or other exploitation of the
dual
capacity relationship. The relationship of trust and confidence between lawyer and client and
with
respect to the lawyer as fiduciary generally requires that a lawyer not serve in both capacities.
The
prohibition in paragraph (l) would not apply to those situations in which there is a familial
relationship between the lawyer and the decedent, trustor, beneficiary, or protected person.

Congrats and further best wishes to Jeff and Alene Lipshaw, who are now celebrating their 30th wedding anniversary (?!!) in Santorini, Greece. I know they are having a good time. And we are happy for them! [Alan Childress]

UPDATE: Thanks, Alan - this is this year's alternative to the Law & Society confab in Denver. Damn! And who's the dorky guy with the beautiful woman? [Jeff Lipshaw]

The Louisiana Supreme Court imposed reciprocal discipline of a stayed suspension for one year and one day based on the same sanction imposed in Colorado.After drinking to excess, the attorney entered the home of an estranged boyfriend without permission through an unlocked back door. While retrieving personal items, she intentionally broke ketchup and barbeque sauce bottles, some wine glasses, pottery and sunglasses. She also used a wine bottle to break the passenger side window of his truck. The attorney had pled guilty to criminal offenses arising out of the incident. (Mike Frisch)

A couple of interesting disciplinary decisions from the North Carolina State Bar web page:

[ A lawyer] of Cary was reprimanded by the DHC for referring to herself as "Madame Justice" on her campaign website after the Grievance Committee issued a Letter of Warning telling her that the reference was misleading and a Rule violation.

The Grievance Committee reprimanded [a] Charlotte [lawyer] for violations in direct mail solicitations, including utilizing a larger font for his letterhead than for the disclaimer "THIS IS AN ADVERTISEMENT FOR LEGAL SERVICES" and improperly suggesting that the lawyers employed in his office were "specialists."

The web page of the North Carolina State Bar reports on the following discipline:

The DHC suspended Robert Brown Jr. of Durham for five years for sexually harassing several employees when he was Durham County Public Defender. After serving three years of active suspension, Brown may petition to have the remaining two years stayed upon compliance with numerous conditions.

Details from a February 10 post at WRAL.com:

The North Carolina State Bar on Monday suspended the law license of a former Durham County public defender, saying he used his office to sexually harass female employees.

Robert Brown Jr. won't be allowed to practice law for five years under the order by the State Bar's Disciplinary Hearing Commission.

Brown resigned as public defender three years ago after one of his assistants accused him of sexual harassment. He had served as Durham County's lead defense attorney for indigent people since 1992.

The disciplinary commission said evidence showed Brown repeatedly asked...an assistant public defender, and [two] legal assistants...about their sexual experiences and told them he could help their careers if they would trust him. Evidence showed he would try to sit close to the women in closed-door meetings and would touch them inappropriately, the commission found.

Citing a previous allegation of sexual misconduct against Brown – he pleaded no-contest in 1996 to grabbing a woman – the commission said a tough sanction was warranted.

"(Brown's) conduct caused harm and significant potential harm to the public defender's office, to the legal profession, to the administration of justice and to the public by undermining public confidence in (his) ability," the commission said in its 10-page order. "Entering an order imposing lesser discipline than an active suspension would fail to acknowledge the seriousness of the misconduct engaged in by (Brown) and would send the wrong message to the attorneys and the public regarding the conduct expected of members of the Bar."

Brown can apply for reinstatement of his license after three years, the commission said. To have the final two years of his suspension lifted, he would have to have two evaluations by psychiatrists experienced in treating sex offenders and would have to undergo any counseling they recommended.

Pemmsylvania is a jurisdiction that treats practicing while suspension as serious misconduct that warrants a significant sanction. An attorney who had placed on inactive status for failure to complete required CLE was suspended for a year and a day by the Supreme Court. He had ignored notices regarding the issue, acknowledging that he receive notices did not open the mail when it came from the Bar. It also was not helpful to his cause that he contended that such unauthorized practice did not cause any harm to clients or the profession. The Disciplinary Board viewed him as lacking appropriate remorse. (Mike Frisch)

The Kansas Supreme Court reversed a Court of Appeals decision and ordered a new trial in a medical malpractice case. The trial court had granted a motion for new trial to a defendant doctor who was alleged to have negligently performed an adult circumcision. The jury had found the doctor 54% at fault (a delicate calculation, I am sure) and awarded almost $2 million in damages for past, present and future suffering.

The court here found, among other things, that the court of appeals had improperly circumscribed (no pun intended) the authority of counsel to conduct post-trial inteviews with the jurors:

...we conclude the Court of Appeals majority overstepped clear precedent in narrowing the window of opportunity for postverdict communication between counsel and jurors. Under Supreme Court Rule 169, attorneys may discuss a trial with willing jurors after their discharge from jury duty and may do so without seeking permission from the district judge unless contrary orders have been given. In this case, defense counsel and counsel's representative did not err by conducting telephone interviews of jurors after the trial.

An attorney with a significant record of prior discipline, including violations after reinstatement from an earlier suspension, was again suspended for one year by the Wisconsin Supreme Court. The lawyer had violated ethical rules in three matters, two involving clients and the third involving the complaint of a service provider.

The court rejected his request to backdate the suspension:

Attorney...contends a one-year license suspension retroactive to April 1, 2007, would be appropriate.He says he has taken responsibility for his misconduct by stipulating to all of the complaint's fact allegations as well as stipulating to the duration of the discipline sought by the OLR.He notes he had the option of seeking reinstatement but instead sought to resolve this matter before proceeding.Thus, he contends, a retroactive suspension would properly take into account all those factors.

We acknowledge Attorney...has accepted responsibility for his misconduct.We conclude, nevertheless, the mitigating effect of his acceptance of responsibility must be viewed in relation to his extensive disciplinary history, along with the number of counts and the nature of his misconduct.In view of these significantly aggravating factors, we conclude that a retroactive suspension fails to achieve the goals of legal discipline.Accordingly, the one-year license suspension shall be effective the date of this order.

The New York Appellate Division for the Second Judicial Department entered two virtually identical orders of reinstatement (linked here and here). The attorneys had the disciplinary matter heard by the same referee and were both suspended for two years on the same date. Both were investigated by the Committee on Character and Fitness on identical issues (their means of support while suspended, a legal fee of $37,553 for work performed and billed prior to suspension, and whether other bars were notified of the New York suspension) and even have the same last name. Both were reinstated effective immediately. (Mike Frisch)

In a bar discipline case decided yesterday, the Ohio Supreme Court determined to impose indefinite suspension rather than disbarment for a host of ethical violations in multiple matters including misappropriation of client funds. The court pointed to a number of mitigating factors that helped explain, if not excuse, the misconduct. The attorney has now been in treatment for over two years for depression and posttraumatic stress disorder that in part relates to his military service in Vietnam. The treatment addresses issues that the lawyer had been unable to confront:

including his involvement in a motor vehicle accident while in the service that caused his best friend's death, his severe injury from being stabbed while a soldier, the death of his infant child, and more recently the deaths of his wife and then of a girlfriend. [His treating physician] explained in detail the overwhelming effects of these events and how in later years those effects caused [his] lethargy, lack of motivation, and inability to complete tasks.

The lawyer has shown serious remorse for his actions and is likely to face criminal charges. He also has a record of fine pro bono work. He also has worked with the Ohio lawyer assistance program, which had advocated on his behalf for a sanction less than disbarment. (Mike Frisch)

The Wisconsin Supreme Court affirmed a referee's findings of misconduct in two of four charged instances but reduced the proposed 60 day suspension to a public reprimand with costs. The attorney had represented a bridal shop owner in a conversion action brought against a bank and its lawyer that had seized assets of the client's prior business in a replevin action. The lawyer had missed a court appearance, leading to dismissal of the case. He thereafter appeared and claimed that a health issue had prevented him from appearing. The judge found that he had not established good cause and refused to reinstate the matter.

The referee rejected charges that the conversion claim was frivolous. The court agreed:

The tests that we apply in this disciplinary matter are whether
there was clear, satisfactory, and convincing evidence that Attorney Osicka
knowingly advanced a claim or defense that was unwarranted under existing law
or could not be supported by a good-faith argument for an extension,
modification or reversal of existing law, and whether there
was clear, satisfactory, and convincing evidence that Attorney Osicka knowingly
advanced a factual position without a basis for doing so that was not frivolous. In other words, the OLR was obligated to show
that Attorney Osicka, in fact, knew the claim or factual position he was
advancing was unwarranted.

The referee concluded that the OLR had not met these
standards.This is supported by the
referee's finding that the OLR, through the testimony of the attorneys for the
Bank, never disproved that the Bank had improperly seized L.A.'s
personal property and records that were not subject to its security
interest.Similarly, the referee made no
finding that Attorney Osicka knew that L.A.had not started a new, legally separate business, but nonetheless went
forward with his claim that the Bank had improperly seized assets belonging to
the new business.To the contrary, the
referee pointed out that L.A. had stated in
her affidavit that she had created a new business entity with separate
inventory.Moreover, the referee found
that Attorney Kostka may have had personal knowledge before the execution of
the replevin order that L.A. had separated inventory items between her two
business entities, but nonetheless participated as an agent of the Bank in the
execution of a replevin order that resulted in a seizure of assets without
consideration of which entity owned the assets.We agree with the referee that the evidence presented in this proceeding
simply did not meet the rather high burden of showing that Attorney Osicka
subjectively knew he did not have a good-faith basis for advancing his factual
assertions or claims, but nonetheless went forward with those factual
assertions and claims.

The court agreed with the referee that, in an unrelated matter, the lawyer had failed to fully respond to the bar's request for information. The lawyer's actions in providing the information on the day before a proposed interim suspension for failure to respond violated the duty to cooperate.

In another matter, the attorney had failed to return an unearned fee. The attorney had made a late-blooming assertion that the fee was non-refundable. (Mike Frisch)

...has been
suspended by the Supreme Court of Ohio for two years, with the second
year of that term stayed on conditions, for failing to segregate funds
he held in trust for clients in a separate bank account or to keep
complete records tracking disbursements of those funds. The Court also
found that [he] failed to notify his clients that his malpractice
insurance had lapsed, and failed to comply with state attorney
registration requirements during the 2007 registration period.

The
Court adopted findings by the Board of Commissioners on Grievances
& Discipline that despite prior training and employment in the
banking and accounting fields, [the attorney] admitted maintaining only a
single bank account for his law practice into which he deposited both
his personal funds and funds entrusted to him by clients, and also
admitted that he maintained no records accounting for his receipt or
disposition of client funds in his possession other than monthly bank
statements and a check register.

The court's decision is linked here. The attorney was engaged in practice as a second career after working with a regulatory agency, an accounting firm and a bank. He has a longstanding problem with alcohol that has not been successfully addressed. Despite his participation in the bar's treatment program, he has continued to drink. (Mike Frisch)

I have nothing to say about the nomination, and very little reaction, other than this seems to be a perfectly fine nomination of a perfectly fine judge who has the temerity not to have a consistent set of beliefs that manage to satisfy every interest group on all poles of every issue.

Our family did, however, get a good yuck out of the Type I diabetes issue, as Judge Sotomayor appears to be the first Type I diabetic to be nominated to the Court, as summarized here in the New York Times. For the uninformed, Type I diabetes mellitus (also known as juvenile diabetes) is an autoimmune disease in which the body's antibodies attack and kill (permanently) the insulin producing cells in the islets of Langerhans in the pancreas. Insulin is what allows the body to process glucose. Type I diabetes is a permanent condition (presently) requiring the intradermal injections of insulin for the patient to survive (hence, "insulin dependent"). It is different from Type II diabetes in which pancreatic function is decreased but not killed off. There appears to be a genetic predisposition to auto-immune diseases (like psoriasis or rheumatoid arthritis or Type I diabetes), and it's thought that a virus triggers the disease. There is presently no cure.

One out of every six hundred people is Type I diabetic. If you have a diabetic sibling, you have a 5% chance of being diabetic. We have three children, ages 25, 22, and 20. All three have Type I diabetes. My daughter has lived with it for sixteen years. All three of my children are healthy and successful (presently one in the MFA program in theater at Columbia, one entering med school at Michigan in the fall, one finishing his sophomore year at Stanford). Other notable Type I diabetes included Jay Cutler, the new quarterback of the Chicago Bears, and Mary Tyler Moore.

The idea that Type I diabetes is a political issue is just ludicrous. Justice Scalia seems to be a tad overweight (possibly a candidate for Type II!), and we know very little about the thyroid issues, or atherosclerotic condition of the other justices. Do any of the male justices have male urinary syndrome that might cause them to go running for the loo during an argument (in which case FloMax will help)? I'm thinking that restless leg syndrome might be a problem too.

I do appreciate the chance to say that with care and discipline Type I diabetes is a chronic disease that families can manage very, very well, and there isn't a single thing in the world that a Type I diabetic can't do. But feel free to make a contribution to the Juvenile Diabetes Research Foundation.

The Illinois ARDC has filed a disciplinary complaint against an attorney who had loaned a woman he was dating $20,000 in exchange for a promissory note that provided for monthly repayments. He then married the borrower, who later sought divorce after seven years of marriage.

According to the charges, the attorney had sold the note to his cousin for $5,000 but thereafter falsely claimed to have retained his interest in the note, for which the wife paid him $10,000 in the divorce settlement. The charges contend that the attorney engaged in dishonesty and other misconduct, and specifically allege a series of false interogatory answers in the litigation. (Mike Frisch)

The full Massachusetts Supreme Judicial Court affirmed the determination of a single justice imposing reciprocal disbarment of an attorney based on his disbarment in the District of Columbia. The court declined the invitation to revisit the facts found to establish the ethical violations:

Mitrano [the attorney] has not established either that the District of Columbia proceedings deprived him of notice and an opportunity to be heard or that there was a significant infirmity of proof. As to the notice he received, Mitrano argues that he was charged with forging the indorsement on the check, and that he was thus not put on notice that he would be disciplined for securing an indorsement by an unauthorized person. The District of Columbia Court of Appeals found this argument to be "utterly without merit," In re Mitrano, supra at 906, and we agree. While the District of Columbia's specification of charges contains one sentence alleging that Mitrano himself indorsed the check in the name of Michael J. Byorick, an allegation that the D.C. board found to be unproven, this was but one part of the charges against Mitrano. It is clear that Mitrano was being charged with theft of the proceeds of the check and that forgery was merely an alleged method by which he accomplished the theft. Mitrano had ample notice and opportunity to defend himself against the charges.

As to the sufficiency of the evidence, Mitrano essentially challenges the credibility determinations made by the [District of Columbia] hearing committee. The hearing committee was in a far better position to make those determinations than we are, and we defer to their views. Mitrano also points to evidence that, according to him, shows that Byorick in fact had authority to indorse the check, or at least that Mitrano could have reasonably believed that he had such authority. On the contrary, the evidence on which Mitrano relies shows at most that Byorick was an officer of Mitrano's corporate client several years before the check was indorsed. There was evidence before the D.C. board that Byorick no longer held that position at the critical time, but had retired to Florida, and that Mitrano had no basis to believe at that time that Byorick had authority to indorse a check on behalf of the corporation. Moreover, even if the evidence before the hearing committee might have supported inferences more favorable to Mitrano, this does not establish a significant infirmity of proof for the inferences that it did draw. Because Mitrano received a fair hearing in the District of Columbia and the findings are supported by sufficient evidence, the District of Columbia's judgment of disbarment constitutes conclusive evidence of Mitrano's misconduct. S.J.C. Rule 4:01, § 16(3).

Whether a recently appointed judge may receive a fee for legal work performed prior to taking office.

ANSWER: Yes.

FACTS

Prior to taking office, the inquiring judge represented several clients on a contingency fee or partial contingency fee basis where a judgment was obtained but never satisfied. The judge inquires as to whether a fee may properly be received for legal work performed prior to appointment if payment is made on any of these currently unsatisfied judgments.

DISCUSSION

This Committee has consistently opined that a judge may collect a fee on legal work performed prior to assuming the bench, as long as the computation of the fee is based on traditional standards. See Fla. JEAC Ops. 06-01, 97-9, 94-7, 91-8, and 89-1. As long as the fee is properly calculated based upon legal services the judge performed on behalf of the client prior to assuming the bench, and the applicable requirements of The Florida Bar Rules of Professional Conduct are satisfied, no impropriety appears, and the judge may collect a fee. However, the judge may not provide legal assistance to a former client with regard to seeking satisfaction of a judgment. See Canon 5G of the Code of Judicial Conduct ("A judge shall not practice law."); see also JEAC Op. 05-19 (judge may not discuss former clients' cases with their new lawyers except as to matters which would not constitute the practice of law).

Thousands of disciplinary rulings against lawyers accused of misconduct can be publicised after one of Britain's leading solicitors lost a battle in the Court of Appeal to keep his own case under wraps.

Lawyers for Michael Napier, former President of the Law Society, went to court to seek an injunction to stop Private Eye from publishing identifying details of a complaint against him. But on Tuesday the Court of Appeal backed an earlier ruling by Mr Justice Eady in the High Court and refused to grant the banning order.

The ruling also clears the way for thousands of other cases each year against solicitors and barristers to be publicised, as well as findings by the legal ombudsmen who act as a last “court” of appeal.

The ruling also raises a question mark over the publication of disciplinary findings by other professional bodies and other ombudsmen.

One lawyer said yesterday: “This will be a free-for-all for complainants. Anyone aggrieved with his or her lawyer will be able to publicise details, whether the complaint was upheld or not — and the public will think there's no smoke without fire.”

Mr Napier, senior partner of the law firm Irwin Mitchell and a member of a new arch regulator, the Legal Services Board, has been reprimanded and found guilty of acting in circumstances where there was “significant risk” of a conflict of interest.

The complainant, a barrister called Michael Ford, then referred the case to the legal ombudsman. It was looked at by the Scottish ombudsman because Mr Napier had held a prominent position in the Law Society. He concluded that the Law Society had failed to investigate the original complaint properly and said that the penalty imposed, the reprimand, should be reinvestigated to see whether some other penalty should be imposed. In January this year Private Eye obtained a copy of the ombudsman's report but Irwin Mitchell and Mr Napier sought an injunction to prevent him from being identified in any publication.

This week's robust ruling by the appeal judges means that decisions by adjudication panels can be published if the complainant wishes. The Solicitors Regulation Authority, the body that took over the job of disciplining solicitors from the Law Society, makes almost 2,500 adjucations a year.

Lord Justices Hughes, Toulson and Sullivan ruled that complainants did not owe a duty of confidentiality to their solicitors. Lord Justice Hughes rejected the argument from Mr Napier's lawyers that the disciplinary scheme would be unworkable or would “impair the integrity of the process” unless the adjudications by panels were confidential to themselves.

Mr Napier was not available for comment.

Mr Ford's complaint against Mr Napier relates to the barrister's suspension from the Hong Kong Bar Association over misuse of confidential client information. He appealed to the Privy Council and engaged Mr Napier, who acted free of charge and won the appeal. But five years later Mr Ford alleged a conflict of interest.

He claimed that the relationship of another branch of Irwin Mitchell with Esso was deterimental to him and beneficial to Exxon and its wholly owned subsidiaries, including Esso, which was in litigation with him.

Irwin Mitchell said: “We expect the decision will be a surprise and of concern to the legal profession and to other regulated professsions and businesses which might have thought information provided to their regulator would be treated as confidential, especially in the sensitive area of complaint investigation and processing.”

Thanks to John Van Bolt of Michigan for sending this information. (Mike Frisch)

The Oklahoma Supreme Court has granted a petition for reionstatement of an attorney who presently resides in Kansas and does not practice in Oklahoma. A dissent would grant reinstatement with conditions:

This is a proceeding for de novo review of a Professional Responsibility Tribunal's recommendation that petition for reinstatement be conditionally granted. The conditions are described in paragraphs 4 and 5 of the Trial Panel's report.

The Tribunal recommends (1) that "petitioner must agree [to] and more adequately disclose this restricted nature of the representation" he provides in prelitigation stage for clients injured in car wrecks and (2) that the General Counsel of the Oklahoma Bar Association be satisfied that petitioner has demonstrated "satisfactory knowledge of Rules 1.1, 1.2, 1.3, 7.1 and 7.2 of the Oklahoma Rules of Professional Conduct."

I would condition petitioner's reinstatement as an active member of the Bar in the manner proposed by the Trial Panel's Report.

This decision would benefit by a fuller explanation of both the reasons for the prior suspension and the nature of the attorney's proposed use of his Oklahoma license. (Mike Frisch)

The Illinois ARDC has filed a second amended complaint alleging that a law firm partner engaged in a six-year course of conduct involving misappropriation from his law firm's IOLTA account. The charges further allege that the misconduct was concealed by false notations that indicated that the disbursements were legitimate and proper. One of the counts recites a series of 99 checks that were written for such expenses as credit card payments, dental bills for his child and the purchase of a BMW.

The attorney also is subject to criminal charges based on the same alleged course of conduct. (Mike Frisch)

The New York Appellate Division for the Second Judicial Department imposed reciprocal discipline based on the attorney's New Hampshire disbarment. The court summarized the findings of misconduct:

By order and opinion of the Supreme Court of New Hampshire dated October 31, 2005, the respondent was disbarred based on his conduct in representing Richard Schneider in a divorce action in 1995. The respondent advised his client to file for bankruptcy in light of his financial difficulties. The Schneiders owned the Village Grocery Store (hereinafter the Village Grocer) on which the Shawmut Bank was in the process of foreclosing. The respondent informed the Bank of his concerns about gasoline pumps and underground storage tanks that were once located on the property. Largely due to that information, Shawmut Bank became disinterested in holding title to the property.

On October 10, 1995, the respondent, his wife, and George Chapman signed a partnership agreement forming the REMY Limited Partnership. On October 30, 1995, REMY Limited Partnership paid Shawmut Bank $25,000 for the three mortgages it held on the Village Grocer without disclosing the respondent's role as a partner in REMY Limited Partnership. The respondent drafted a quitclaim deed that Schneider signed on October 31, 1995, transferring title to REMY Limited Partnership. Schneider was unaware that the respondent and his wife were involved in REMY Limited Partnership.

On November 3, 1995, the respondent filed a petition in bankruptcy court on behalf of Schneider. The petition failed to disclose the debtor's interest in property transferred within the preceding year. On February 6, 1996, Schneider received a discharge in bankruptcy.

On April 8, 1996, REMY Limited Partnership obtained a $75,000 loan from Granite Bank secured by the Village Grocer. REMY Limited Partnership then filed a certificate of limited partnership with the Secretary of State listing the respondent and his wife as general partners and Chapman as limited partner. On October 10, 2002, the respondent had Schneider sign a corrective quitclaim deed amending the name of the grantee to REMY Real Estate Limited Partnership (hereinafter REMY). Schneider was still unaware of the respondent's interest. On May 13, 2003, REMY refinanced the mortgage held by Granite Bank and received an additional loan in the sum of $125,000 secured by the Village Grocer. The respondent then filed an affidavit with the County Registry of Deeds clarifying the name of the partnership and identifying himself as general partner. The respondent also filed the quitclaim deed with the registry of deeds.

On August 4, 2003, United States Trustee Geraldine B. Karonis filed an ex parte motion to reopen the Schneider bankruptcy based upon the discovery of information not previously disclosed. Upon learning of the respondent's interest in REMY, Schneider filed a complaint with the Attorney Discipline Office (hereinafter ADO) on September 24, 2003. On October 20, 2004, the ADO issued a notice of charges which the respondent claimed were time-barred.

The presence of aggravating factors, including prior offenses, multiple rule violations, and dishonest or selfish motive, as well as the egregiousness of the misconduct, were deemed by the New Hampshire Supreme Court to warrant the respondent's disbarment in that state.

Although served with the Grievance Committee's notice pursuant to 22 NYCRR 691.3 on October 16, 2008, the respondent has, to date, failed to reply or to assert any of the enumerated defenses. There is, thus, no impediment to the imposition of reciprocal discipline at this juncture.

Under the circumstances, we find that the respondent's misconduct warrants his disbarment in New York as well.